Dear PAO,

Someone from our neighborhood was murdered. According to a witness, a fistfight ensued between the victim and X, the assailant. Startlingly, out of nowhere, X pulled out a long knife and struck the victim several times. Seemingly unsatisfied, X then drew a gun and fired a shot at the victim. The latter was declared dead on arrival at the hospital. Apparently, the two had a long-standing feud, and X had told some of the neighbors that he would kill the victim when an opportunity arose. The bereaved family believes that the incident was the opportunity X had been waiting for, as the victim was unarmed while X was ready with his weapons that day. Still, X denies having employed abuse of superior strength, claiming that he and the victim are just of the same body built and that no one really helped him in inflicting harm on the victim. So, for him, there is no disproportionality to even consider the existence of the qualifying circumstance of abuse of superior strength that would make him liable for murder. Is the mere act of carrying and using both a gun and a long knife not enough evidence to establish that there was abuse of superior strength for X to be liable for murder? Please advise.

Yeuhan

Dear Yeuhan,

In order to constitute the crime of murder, the following elements, in consonance with Article 248 of the Revised Penal Code (RPC), must be clearly and convincingly established: (1) that a person was killed; (2) that the accused killed him/her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) that the killing was not parricide or infanticide.

Taking advantage of superior strength is one of the qualifying circumstances mentioned under Article 248 (1) of the RPC. To be specific, the law states:

“Article 248. Murder. – Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:

“1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.

x x x” (Emphasis supplied)

We wish to emphasize that “taking advantage of superior strength” or “abuse of superior strength” is not only confined to physical disproportionality or numerical inequality. The victim and the assailant may very well have the same body built, be of the same age and even belong to the same gender, or that no one may have assisted the assailant in pursuing the crime, but if there are circumstances which can show that the assailant employed other forms of dominant force against the victim, then the qualifying circumstance of abuse of superior strength may still be appreciated against the assailant, and a complaint for murder may be pursued.

In one case, the Supreme Court, through a former associate justice, who later on became a chief justice, Reynato Puno, explained:

“x x x Abuse of superior strength requires, at base, a deliberate intent on the part of the malefactor to take advantage thereof. Besides the inequality of comparative force between the victim and the aggressor, there must be a situation of strength notoriously selected and made use of by the offender in the commission of the crime before abuse of superior strength can be appreciated against the offender.

“In the case at bar, appellant’s deliberate intent to take advantage of superior strength is clear. He was armed with a powerful weapon that is manifestly out of proportion to the defense available to the offended party. His victim was young and unarmed. It was unnecessary for appellant to shoot the victim when the latter approached him for throwing a punch at Restituto. In People vs. Padilla, we held:

“Abuse of superior strength is present not only when the offenders enjoy numerical superiority, or there is a notorious inequality of forces between the victim and the aggressor, but also when the offender uses a powerful weapon which is out of proportion to the defense available to the offended party.” (People of the Philippines vs. PO3 Ernesto Langres, GR 128754 Oct. 13, 1999; Emphasis supplied).

Accordingly, the fact that X and the victim have the same body type or built and that no one aided X in inflicting harm on the victim does not preclude the possibility of existence of abuse of superior strength, especially considering that X carried a gun and a long knife at the time of the incident, which may be used as evidence against him to establish the qualifying circumstance abuse of superior strength. And, if by other direct or circumstantial evidence it can be clearly and convincingly shown beyond reasonable doubt, that X carefully chose to have those weapons with him at the time and place of the incident in order to accomplish taking the life of the victim, as he actually did, and the killing was not parricide or infanticide, then he may be held liable for the crime of murder.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].